Improper electronically stored information (ESI) collection, or leaving collection to the wrong custodian, can lead to unintentional (or worse, intentional) data spoliation that can and will put the future of your case in jeopardy. To ensure that ESI is collected properly and avoid data spoliation, the best thing you can do is make use of certified eDiscovery consultants.
For Want of an ESI Custodian, a Case was Lost
Collecting ESI is risky business. Do it wrong, and you can completely change the outcome of your case (and almost never in your favor)! For example, in OmniGen Research v. Wang, 2017 U.S. Dist. LEXIS 78107, the responsibility of collecting the relevant ESI was left up to the data’s custodian (in this case, the defendant), and the plaintiffs were easily able to argue that the defendant had intentionally deleted documents crucial to their case. In this court case, data spoliation by the defendants resulted in the court finding in favor of the plaintiffs.
When you receive an ESI production request, this is the last thing you want to happen. Here are some of the things that can go wrong when you leave ESI collection to the wrong personnel:
The Risks of ESI Self Collection
Custodian self-collection is perhaps the riskiest of all methods of self-collection, and will almost certainly have negative effects on your case. This is when the onus of responsibility for ESI collection is left to the owner of the data upon receiving an ESI discovery request, such as the defendant/plaintiff.
This is a bad idea on many fronts, but mainly for these three reasons:
- The Custodian Doesn’t Know Where the Data Lives
The custodian does not always know where the data they need to collect is stored, especially if this concerns a small business or organization. Does it live on a local backup server or an internal server? Does the data live on the Cloud, or is it stored by a third-party email provider? A small business owner will likely not be so tech-savvy or hands-on to be able to answer all of these questions themselves.
- The Custodian Doesn’t Know How to Collect the Data
Which brings us to the next problem with custodian self collection. Custodians are not always good with tech, and are most likely not certified eDiscovery consultants. In other words, when asked to satisfy an ESI discovery request, they likely won’t have the proper skill and training to collect this data without causing unintentional data spoliation.
- The Custodian Might Intentionally Suppress Information
Especially if they’re the defendant, if the custodian in your case has something to hide, they might very well try to hide it. In this situation, asking them to fulfill an ESI discovery request is like asking the fox to watch the henhouse. They could very well delete or refuse to collect ESI that may be sensitive, embarrassing, or evidence of wrongdoing. In the above case study, improper ESI self-collection (whether or not the data spoliation was truly intentional) led to the plaintiffs successfully making this argument and the court ruling against the defendant.
The Risks of IT Collection of ESI
Leaving an ESI discovery request up to the custodian’s IT department seems like a smarter move. And it is, but not by much. There are still a whole host of things that can go wrong.
An internal IT department may very well be more qualified than the custodian themselves to determine where ESI lives, but despite their tech background, they still aren’t properly trained to collect relevant ESI properly, which can lead to unintentional data spoliation.
Furthermore, the custodian’s IT staff won’t be familiar with the case, nor will they be familiar with how the custodian interacted with the data, making them ill-suited to perform ESI collection.
Not only that, but especially in cases of business litigation, the last thing a defendant wants is for their own employees to know they need to collect data for a court case. Rumors spread, employees smell blood in the water, and people might even start jumping ship. It’s a bad idea.
And again, similar to custodians, the IT team might not be unbiased in their collection efforts. Furthermore, if the custodian is, for example, the CEO of a business, and does have something to hide, they could very well attempt to use their leverage as the boss to pressure their IT team into overlooking certain sources of ESI.
Leaving ESI Collection Up to the Professionals
In court case after court case, it’s been made abundantly clear that ESI self collection is simply not good enough. Only a reasonable search and collection methodology will hold up in court. When you need to collect and present relevant ESI for litigation, doing it “by the book” is critical. Do it wrong, leave collection to the wrong person, and you and your client can end up in hot water.
There can be severe consequences for improper ESI collection, including leaving ESI collection to the wrong personnel, and with everything else you have on your plate, you simply don’t have the time or resources to do it yourself. The best way to avoid these consequences is to seek out professional e-discovery vendors.
At Gillware Electronic Discovery, you will find certified eDiscovery consultants capable of safely handling and collecting the relevant ESI for your case in our digital forensics lab in Madison, Wisconsin. Our e-discovery consultants always work to keep our clients in law firms as involved in the ESI collection process as possible through every step in the eDiscovery process. If you are in need of ESI collection services, contact our consultants today.